ECB entitled to refuse access to two documents relating to the economic situation in Greece
>> On the basis of Decision 2004/258, any EU citizen any natural or legal person residing or having its registered office in a EU Member State, has a right of access to documents of the ECB. Nonetheless, the ECB must refuse access where, inter alia, disclosure of the requested documents would undermine the protection of the public interest
Ms Gabi Thesing, a journalist for Bloomberg, requested the ECB to grant access to two documents, entitled ‘The impact on government deficit and debt from off-market swaps. The Greek case’ and ‘The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels’.
The ECB refused access to those documents on the ground, inter alia, of the protection of the public interest so far as concerned the economic policy of the EU and Greece. Ms Thesing and Bloomberg challenged that decision before the General Court, putting forward three pleas in law in support of their action. The first alleged infringement of the second indent of Article 4(1)(a) of Decision 2004/258 in so far as the ECB incorrectly interpreted the exception to the right of access relating to the protection of the public interest so far as concerned the economic policy of the Union and the Hellenic Republic. The second plea concerned the exception to the right of access relating to the protection of the commercial interests of a natural or legal person, under the first indent of Article 4(2) of that decision. The third plea alleged infringement of Article 4(3) of that decision relating to the protection of the ECB’s internal deliberations and consultations.
The Court pointed out that Decision 2004/258 sought to authorise wider access to ECB documents than that which existed under the system established by Decision ECB/1998, while at the same time protecting the independence of the ECB and of the NCBs, and the confidentiality of certain matters specific to the performance of the ECB’s tasks. Article 2(1) of Decision 2004/258 therefore gives any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, a right of access to ECB documents, subject to the conditions and limits defined in that decision.
The Court held that that that right was subject to certain limits based on reasons of public or private interest. The Court pointed out that Decision 2004/258 provided, in Article 4, for a system of exceptions authorising the ECB to refuse access to a document where disclosure of that document would undermine one of the interests protected by Article 4(1) and (2) or where that document contained opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs. The Court held that since the exceptions to the right of access referred to in Article 4 of Decision 2004/258 derogated from the right of access to documents, they must be interpreted and applied strictly.
The Court held that if the ECB decided to refuse access to a document which it had been asked to disclose under Article 4(1) of Decision 2004/258, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in that provision – upon which it was relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see, by analogy, Case C‑506/08 P Sweden v MyTravel and Commission , on which I wrote this post).
The Court stated that with respect to the extent of the review of the legality of an ECB decision refusing public access to a document on the basis of the exception relating to the public interest provided for in the second indent of Article 4(1)(a) of Decision 2004/258, the ECB must be recognised as enjoying a wide discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by that exception could undermine the public interest.
The Court found that “the European Union judicature’s review of the legality of such a decision must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers” (see, by analogy, Case C‑266/05 P Sison v Council , on which I wrote this post).
The Court held that the exceptions to the right of access to documents provided for in Article 4(1)(a) of Decision 2004/258 were framed in mandatory terms. It followed that the ECB was obliged to refuse access to documents falling under any one of those exceptions once the relevant circumstances are shown to exist, and no weighing up of an ‘overriding public interest’ is provided for in that provision, in contrast with the exceptions referred to in Article 4(2) and (3) of that decision (see, by analogy, Joined Cases T‑3/00 and T‑337/04 Pitsiorlas v Council and ECB ).
The Court held that in the light of the very vulnerable environment in which the financial markets found themselves at the time of adoption of the contested decision, the assessment that such an error would undermine the economic policy of the Union and Greece could not be rejected as manifestly incorrect. The Court argued that such an error might have had negative consequences on access, in particular for that Member State, to the financial markets and might therefore have affected the effective conduct of economic policy in Greece and the Union.
According to the Court, the ECB was therefore entitled to base its refusal to grant access to the first document on the exception provided for in the second indent of Article 4(1)(a) of Decision 2004/258.
>> Charter of Fundamental Rights
The applicants also claimed that, in order to avoid a breach of their rights under Article 10 of the ECHR, it was necessary to construe and apply the exception referred to in the second indent of Article 4(1)(a) of Decision 2004/258 in the manner stated by the applicants. In this respect, they refered to the judgments of the European Court of Human Rights in Társaság a Szabadságjogokért v. Hungary of 14 April 2009, Kenedi v. Hungary of 26 May 2009 and Gillberg v. Sweden of 3 April 2012 (the latter two not yet published in the Reports of Judgments and Decisions)
The Court pointed that Article 10 of the ECHR provides, in its relevant part, that everyone had the right to freedom of expression and that this right included freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carried with it duties and responsibilities, might be subject to such formalities, conditions, restrictions or penalties as were prescribed by law and were necessary in a democratic society for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence.
The Court observed that Article 52(3) of the Charter of Fundamental Rights, which has the same legal value as the Treaties in accordance with the first subparagraph of Article 6(1) TEU, provided that, in so far as the Charter contained rights which corresponded to rights guaranteed by the ECHR, the meaning and scope of those rights were to be the same as those laid down by the ECHR. The Court however held that that provision was not to prevent Union law providing more extensive protection.
The Court pointed out that pursuant to Article 52(7) of the Charter, the explanations drawn up as a way of providing guidance in the interpretation of the Charter, namely the Explanations relating to the Charter (OJ 2007 C 303, p. 17), were to be given due regard by the courts of the Union and of the Member States.
The Court held that it was apparent from the Explanations relating to the Charter that Article 10 of the ECHR correspondedto Article 11 of the Charter, according to which everyone is to have the right to freedom of expression. This right included freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The freedom and pluralism of the media were to be respected.
The Court stated that according to Article 52(1) and (2) of the Charter of Fundamental Rights, any limitation on the exercise of the rights and freedoms recognised by that charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they were necessary and genuinely met objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
The Court held that rights recognised by the Charter for which provision was made in the Treaties were to be exercised under the conditions and within the limits defined by those Treaties. However, the Court pointed out it was clear that Article 11 of the Charter, in conjunction with Article 52(1) and (2) of the Charter, contained rights which corresponded to those guaranteed by Article 10 of the ECHR. The Court thus found that those articles of the Charter must therefore be given the same meaning and the same scope as Article 10 of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C‑400/10 PPU McB  and C‑256/11 Dereci and Others ).
According to the Court, the judgments of the European Court of Human Rights the applicants referred to did not permit the conclusion that, by refusing to grant access to the documents at issue, the ECB misconstrued the scope of the right of access as interpreted in the light of Articles 11 and 52 of the Charter and of Article 10 of the ECHR.